Taking Down Off-Shore Objectionable Publications
Enforcement Issues in the Digital Paradigm
This is an article about the effectiveness of the powers of the Department of Internal Affairs to take down Internet content. I have taken one case in particular which has been the subject of an Official Information Act request to illustrate some of the problems.
I have been careful to make available only such information about the source of information as is necessary for this article. URLs linking to particular objectionable content are not included. As it transpires the content the subject of the takedown request is no longer accessible. Whether this was as a result of the interest of the Department of Internal Affairs or some other agency I know not.
The purpose of the article is to demonstrate the difficulty – indeed the futility - in attempting to enforce New Zealand law in respect to offshore content. The Department of Internal Affairs has made certain proposals to extend its take-down powers in the Discussion Paper “Safer Online Services and Media Platforms”. However, the problems set out in this paper will still remain.
The Background
On Friday 18 August 2023 the Department of Internal Affairs (DIA) sent an email to the Support Team at the social media site Gab.com. Accompanying the email was a take-down notice issued pursuant to section 119C of the Films Videos and Publications Classification Act. The notice referred to a publication entitled “The Three Faced Terrorist: An Investigation into the Christchurch Shootings Part 2”.
The notice claims that the publication has been classified as objectionable by the Classification Office. It required Gab.com to remove the publication from its platform. The notice required the material is to be removed by Monday 22 August 2023 5:00 pm NZST. Immediately there is an error in the notice. 22 August is in fact a Tuesday.
The notice advises that a non-compliance warning would be sent to Gab if it failed to comply with the takedown notice and failure to comply might result in enforcement proceedings.
Gab.com posted a message about the content entitled “The Three Faced Terrorist An Investigation into the Christchurch Shootings Part 2”. However, the reference provided did not point to Gab’s servers but to another site known as The Bernician. This site hosted a video publication about the “Three Faced Terrorist”. The content runs for some 33 minutes and contains excerpts from the live stream filmed by Brenton Tarrant and which the Classification Office has classified as objectionable. The reference link in the message no longer provides access to the video.
Andrew Torba, the CEO of Gab, posted a response to the takedown notice. He pointed out that Gab is located in the United States and benefits from the protection of US law including the First Amendment to the US Constitution.
Mr Torba claims that this “empowers us to make decisions about the content we host without external influence” Furthermore he takes the high ground and claims “Our commitment to these principles means that we do not censor lawful content for any reason, and we do not yield to orders from foreign nations that attempt to curtail this fundamental right.”
Mr Torba points out that Gab has no physical connection to New Zealand that might make it amenable to New Zealand law. The company has no presence, establishment nor intention to hire personnel in New Zealand.
Mr. Torba then goes on to point out that in fact the video content which is objectionable was not in fact hosted on Gab’s servers. Rather a hyperlink points to the content which is hosted on the servers used by The Bernician. Thus Gab acts as an intermediary. A Gab subscriber posted a link to the content on the Bernician website
Mr Torba suggests that an unsuccessful approach has been made to the Bernican and now the DIA is trying to erase the reference which was posted by a Gab subscriber. He then confirms that Gab will not comply with the takedown notice.
Issues Arising
This incident raises a number of issues. The first is whether or not Gab is amendable to New Zealand jurisdiction. Is it obliged to comply with the takedown notice?
The second matter relates to the content itself. What precisely is the content to which the DIA refers. Is it the post by the Gab user? Or is it the link to the Bernician site?
The third issue relates to the whole question of takedown notices under the Films Videos and Publications Classification Act (FVPCA) and which are the subject of comment in the DIA’s “Safer Online Services and Web Platforms” Discussion Paper.
Before addressing the issues I shall briefly outline the relevant sections of the FVPCA.
Relevant Sections of the FVPCA
The censorship regime in New Zealand is governed by the Films, Videos, and Publications Classification Act 1993 which set up a Classification Office to review and classify material submitted to it, and a Board of Review to which an appeal could be made.
The concern of the Act is with objectionable publications. Its purpose is to restrict or ban publications which might cause harm to the New Zealand public. However, since its enactment the environment in which it operates has changed with advances in new technology. One example involves dealing with objectionable material that appears online.
In 2022 the FVPCA was amended by the insertion of Part 7A. This part of the Act sets out the process whereby objectionable online publications may be taken down.
An online publication is a publication that is accessible on an Internet site or an online application or similar. It may also be a copy of content that has been livestreamed and that is accessible on an Internet site or an online application or similar.
The definition in section 119A cross references to the definition of a publication in section 2. The definition in section 2 covers a number of different media of publication. Clauses (a) to (c) define what could be called “traditional” media of publication.
Clause (d) moves into digital media and states that a publication means
“a thing (including, but not limited to, a disc, or an electronic or computer file) on which is recorded or stored information that, by the use of a computer or other electronic device, is capable of being reproduced or shown as 1 or more (or a combination of 1 or more) images, representations, signs, statements, sounds, or words”
When I discuss the issue of the content to which the notice referred the definition in clause (d) will become critical.
Livestream is also defined. It means to transmit over the Internet or any other electronic medium images or sounds as they happen.
The Act also defines an online content host in relation to an online publication. It means the person who or that has control over the part of the electronic retrieval system, such as an Internet site or an online application or similar, on which the publication is accessible.
These amendments came as a result of the March 15 2019 Christchurch Mosque Massacre. The terrorist Brenton Tarrant livestreamed his actions which went live on the Internet. The then Chief Censor David Shanks moved swiftly and classified the livestream as objectionable. This meant that anyone possessing a copy of the livestream or distributing it committed an offence.
The amendments gave the Censor additional powers to take down objectionable material.
Section 119B FVPCA states that Part 7A applies to any individuals in New Zealand and to online content hosts that provide services to the public regardless of whether an online content host is resident or incorporated in New Zealand or outside New Zealand.
Thus the section may apply to offshore online content hosts who may be outside New Zealand. The problem in asserting jurisdiction over an offshore online content host will be discussed in detail in the next section but in essence is based on the concept of extraterritoriality – the applicability of New Zealand law outside New Zealand’s territorial jurisdiction.
Section 119C sets out the process for the issue of a take-down notice. A take-down notice is issued by an Inspector. It may relate to an online publication. It may be issued to an online content host. It may issue if there has been an interim classification that the publication is likely to be objectionable, or where the publication has been classified as objectionable or where the Inspector believes on reasonable grounds that the publication may be objectionable.
Before issuing a take-down notice an Inspector may request the online content host remove the content or prevent access to it by the public. It should be noted that the public in this context are individuals in New Zealand.
Section 119D sets out the contents of a takedown notice which must
(a) contain a description of the relevant online publication; and
(b) identify the URL or other unique identifier of the online publication; and
(c) require the online content host to remove, or prevent access by the public to, the online publication as soon as is reasonably practicable after receipt of the notice and no later than the time and date specified in the notice (the required period); and
(d) inform the online content host of the right of review under section 119J; and
(e) contain other information required by regulations made under section 149(1)(ab) (if any).
Section 119E sets out what an online content host must do to comply with a take-down notice.
The online content host who or that receives a take-down notice must remove, or prevent access by the public to, all copies of the online publication that is the subject of the notice to or over which it has access or control as soon as is reasonably practicable after receipt of the notice but no later than the end of the required period.
There are provisions for the online content host to retain a copy of the publication.
Section 119F provides immunity from civil and criminal liability for actions done in good faith by officers of the Classification Office or the Department of Internal Affairs. Similar immunity is available under section 119G to an online content host who complies with a takedown notice or who preserves a copy for any of the reasons listed in section 119E(3) FVPCA.
Section 119H provides for enforcement of take-down notices.
If an online content host fails or refuses to comply with a take down notice an Inspector mat take proceedings in the District Court.
In such proceedings the powers of the Court are restricted. It cannot examine or make a determination about the issue or merits of the take-down notice. The Court cannot review the process leading up to the issue of the notice nor the basis for it. Essentially this means that the Court must treat the notice as valid.
The Court may determine whether the online content host had a reasonable justification for failing or refusing to comply with the notice within the required period or for any further delay after that period.
It may permit the Inspector to obtain discovery and administer interrogatories and may order a remedy or costs as provided in section 119I.
Section 119I sets out the orders that a Court may make. The Court may
(a) order that the online content host comply with the take-down notice by a date specified in the order:
(b) order the online content host to pay a pecuniary penalty to the Crown:
(c) award costs as the court thinks fit:
(d) order interest to be paid in accordance with the court’s rules.
The pecuniary penalty must not exceed $200,000 and in setting the amount payable the Court may take into account all relevant matters and in particular
(a) the nature and extent of the failure or refusal to comply with the notice; and
(b) the circumstances in which the failure or refusal to comply occurred (including whether this was intentional, inadvertent, or caused by negligence).
The standard of proof for these matters in on the balance of probabilities – the civil standard.
It should be noted that no offence is created. What section 119I does is to establish the circumstances where a Court may impose a civil pecuniary penalty. Thus no conviction is entered, but if the Court makes an order for payment of a pecuniary penalty the online content host is liable to pay it. I should also observe that a civil pecuniary penalty is not a fine. A fine may only be imposed consequent upon the entry of a conviction.
Finally section 119J provides for very limited grounds for review of a take-down notice. A take-down notice may be reviewed only as part of a review under Part 4 of the classification decision relating to the relevant online publication.
The Films, Videos and Publications Classification (Take-down Notices) Regulations 2022 prescribe information that must be contained in a take-down notice and that enforcement proceedings may be taken. It also provides that an Inspector may issue a take-down notice by email.
That then is the statutory framework under which the take-down notice was issued to Gab. The information that is available confirms that Gab did not comply with the first notice. A second notice was issued. The material to which the link refers is still available. The ultimate destination hosting the objectionable content is, as I have noted, no longer available.
The Jurisdictional Issue
Section 119B makes the take-down provisions applicable to an online content host outside New Zealand.
That statement does not carry much weight if there is no provision that enables an off-shore online content host to be brought before a New Zealand Court. Being able to issue a take-down notice to an off-shore content host is meaningless if there is no power of enforcement.
The law relating to jurisdiction of the Courts over off-shore parties is complex. The basic principle is that off-shore parties should not be subject to the jurisdiction of domestic courts unless clearly set out in the law.
Criminal Extra-territoriality
I have written elsewhere about the applicability of the criminal law to off-shore actors.
Section 6 of the Crimes Act 1961 states the general rule governing criminal jurisdiction in New Zealand. Nothing done or omitted outside of New Zealand can be tried as an offence in New Zealand. This is based upon the common law principle that statutes are not to be construed as giving extra-territorial jurisdiction unless there are clear words to that effect. Crime is local in nature. The jurisdiction over crime belongs to the country where the crime is committed.
However, s 7 of the Crimes Act 1961 provides a measure of extraterritoriality. Where any act or omission which forms a part of an offence or any event which is necessary for the completion of the offence occurs in New Zealand, the offence shall be deemed to have been committed in New Zealand whether the person charged with the offence was in New Zealand or not at the time of the act, omission or event.
The act or omission in s 7 refers to those which together comprise the actus reus of the offence. The event refers to any occurrence necessary to complete the offence. Not every offence or crime requires both an act-forming part and an event necessary to completion.
Extraterritoriality under FVPCA and the Unsolicited Electronic Messages Act
Section 145A FVPCA provides for extraterritorial jurisdiction for certain offences under the Act but the relevant offences listed do not include non-compliance with a take-down notice
In fact in the case of non-compliance with a take-down notice no offence is created. It renders the non-compliant online content host potentially liable for a civil penalty – see section 119H.
Civil penalties – a payment ordered by a Court upon liability having been established where no offence is defined – are in other statutes. One, which deals with activities in the Digital Paradigm, is the Unsolicited Electronic Messages Act 2007. (UEMA) This Act provides for the imposition of substantial civil penalties for sending unsolicited electronic messages (Spam) upon the occurrence of a civil liability event.
UEMA does have a limited extraterritorial provision. It extends to engaging in conduct outside New Zealand by a relevant person to the extent that conduct results in a civil liability event occurring. Importantly however is that a relevant person means a New Zealand resident or an organisation that carries on business or activities in New Zealand.
In addition the legislation makes it clear that a electronic message must have been a New Zealand link to be covered by the Act. That includes the message originating in New Zealand, that the person sending the message is an individual who is physically present in New Zealand, or an organisation whose central management and control is in New Zealand when the message is sent along with other territorial specific connections. (UEMA section 4).
Civil Penalties and Extraterritoriality - DIA v Mansfield
There have been a few cases where civil penalties have been imposed under UEMA. In one case – Department of Internal Affairs v Mansfield [2013] NZHC 2064 – the defendant was resident in Perth, Western Australia and had been served with proceedings overseas. He took no active steps in the proceedings.
Mr Mansfield ran business seminars in New Zealand, initially through a company, Business Seminars NZ Limited, and later on his own account. The pecuniary penalty was sought in relation to what the Department said were unsolicited commercial electronic messages promoting the seminars, said to have been sent by Mr Mansfield to persons and organisations resident in New Zealand.
The argument was that Mr Mansfield sent unsolicited electronic messages that had a New Zealand link. It was argued that the sending of an unsolicited commercial electronic message into New Zealand from another jurisdiction is conduct which occurs in New Zealand. The emails advertised an event that was occurring in New Zealand and purportedly came from a company that had a New Zealand connection. After considering a number of cases the Court held that The sending of an unsolicited commercial electronic email into New Zealand was an act or conduct that occurred in New Zealand, and the Court had jurisdiction to deal with the matter.
Mr Mansfield was served with notice of the proceedings. This involved a consideration of the provisions of the High Court Rules relating to service of proceedings upon off-shore parties. It must be remembered that these were civil and not criminal proceedings.
Service of Proceedings Outside the Jurisdiction
There are two types of service on off-shore parties. One requires the permission (leave) of the Court. The other does not. The rule relating to service without leave is Rule 6.27 of the High Court Rules. In this case it was argued that the documents could be served without leave of the Court because the claim arose under an enactment (UEMA) and the act or omission to which the claim relates was done or occurred in New Zealand. The Court held in these circumstances that service without leave was permissible and that Mr Mansfield had been properly served.
A pecuniary penalty of $95,000 was imposed together with an award of costs of $8,460 and disbursements of $3071.54. Civil pecuniary penalties and certain regulatory fines are enforceable in Australia, thanks to legislative changes in NZ and Australia.
Mr Mansfield’s actions in the New Zealand context took place in 2010. However in 2006 business seminar advertiser Clarity1 Pty Ltd and director Wayne Robert Mansfield were fined $A4.5 million and $A1 million for contravening Australian Anti-Spam legislation.
It is not known whether or not the pecuniary penalty imposed in the New Zealand case has been paid or recovered.
Enforcing a Take-Down Notice Against an Off-Shore Entity
This rather lengthy discussion has been necessary to attempt to answer the question of whether or not a New Zealand Court may have jurisdiction to enforce a take-down notice where there has been non-compliance.
The first thing is that a pecuniary penalty may be imposed by the District Court. The second thing is that the standard of proof of the matters required to be considered for the imposition of the penalty are to the civil standard – the balance of probabilities. Thus the proceeding in the District Court would be within the civil jurisdiction of the Court.
That engages the provisions of the District Court Rules relating to service of off-shore parties. The District Court Rules are identical to the High Court Rules in this case although the numbering of the Rules differs.
Can service of any proceedings relating to non-compliance with a take-down notice be effected without the permission of the Court? This requires a consideration of the provisions of Rule 6.23(h) which states allows for service
- Where the claim arises under an enactment – in this case the breach of a take-down notice issued pursuant to the FVPCA
- any act or omission to which the claim relates was done or occurred in New Zealand, or (not applicable)
- any loss or damage to which the claim relates was sustained in New Zealand; or (not applicable)
- the enactment applies expressly or by implication to an act or omission that was done or occurred outside New Zealand in the circumstances alleged; or
- the enactment expressly confers jurisdiction on the court over persons outside New Zealand (in which case any requirements of the enactment relating to service must be complied with)
The provisions of section 119B could arguably apply to an act or omission done outside New Zealand – the act of non-compliance with the take-down notice by the off-shore party – which would enable service to be effected.
The FVPCA does not expressly confer jurisdiction over persons outside New Zealand.
In such a case service could arguably be effected without leave on the off-shore party. That party may do nothing, in which case, rather like Mansfield the matter may proceed by way of formal proof. Alternatively the off-shore party could enter a appearance by way of protesting the jurisdiction of the thus enabling it to challenge whether or not service was properly effected. If that challenge is successful the matter is at an end. If the challenge is unsuccessful the Court can proceed to consider the imposition of the pecuniary penalty and the off-shore party would have a right to be heard if it chose to exercise that right.
For those reasons it would appear that there is a pathway for the enforcement of a take-down notice against a non-compliant off-shore party.
The Content Itself – Objectionable or Not
The next issue can be expressed in this way. Can a hypertext link to objectionable material amount to a publication that may be the subject of a take-down notice.
The term “publication” is defined in section 2 FVPCA. It provides as follows that publication means:
(a) any film, book, sound recording, picture, newspaper, photograph, photographic negative, photographic plate, or photographic slide:
(b) any print or writing:
(c) a paper or other thing that has printed or impressed upon it, or otherwise shown upon it, 1 or more (or a combination of 1 or more) images, representations, signs, statements, or words:
(d) a thing (including, but not limited to, a disc, or an electronic or computer file) on which is recorded or stored information that, by the use of a computer or other electronic device, is capable of being reproduced or shown as 1 or more (or a combination of 1 or more) images, representations, signs, statements, sounds, or words
(e) a copy of images or sounds that have been livestreamed, but not the livestreaming itself of those images or sounds (livestream has the meaning given in section 119A)
The definition of publication is important because it is the publication itself which may be objectionable. It will be seen in the instances set out above that publication generally refers to substantive material such as a film, book, print or writing. Even the mysterious reference to a “thing” – contextually some form of storage medium – carries with it the meaning of a container that stores substantive information that is capable of being reproduced and which then can be considered for objectionable classification. There could be room for debate about whether a “thing” could cover a hypertext link.
Hypertext Links as Publications
Because the Act primarily focuses on the classification and censorship of actual media content such as films, videos, and publications, technically hypertext links, in and of themselves, do not typically fall under the purview of the FVPCA. Hypertext links are not media content; they are references or connections to other online resources.
A website may be considered objectionable under the FVPCA. If a website contains material that falls under the jurisdiction of the FVPCA (e.g., explicit content that could be classified as objectionable), the website itself and its content could be subject to classification or censorship. Hypertext links on a website would not be the primary concern; it would be the content to which they lead that would be assessed.
For an offence of distributing objectionable content the provision of a link would be sufficient. Section 122 FVPCA states that distribute includes providing access to a publication and given the example of making digital content available that is or includes the publication by means of a public data network. That is made clear in the case of George v R [2022] NZCA 242
Mr George was charged with threatening to kill and with a representative charge of distributing objectionable material contrary to the FVPCA. He was convicted of both offences and appealed his conviction on the charge of distributing objectionable material. The objectionable material was Brenton Tarrant’s manifesto which had been classified as objectionable. Mr George had sent links to that material which was hosted on another site although he did not have a copy of the manifesto itself.
The Court considered the definition of “distribution which includes providing access to a publication and the Court noted that expanded concepts of supply and distribution had been added to the Act in 2005.
The Court held
“the URL provides access to an internet document by constituting an address expressed in a format used by a browser to locate the document. Thus, by “clicking” on the URL the user accesses the document. Sending the URL by way of a message, as Mr George did, provides that access.”
But that only applies to offences and non-compliance with a take-down notice is not an offence that is covered by the definition of “distribute”. Because the use of a hypertext link is an element of distribution it does not automatically make it a “publication”. In some respects that is a contradictory outcome because seated behind publication as a verb is the act of making the information public. However, the word “publication” in FVPCA is a noun and is limited in its scope.
Contributory Liability?
A concept present in United States copyright law is that of contributory infringement. It refers to a situation in which a person or entity contributes to, facilitates, or aids someone else in infringing upon the copyright of another party. In other words, if a person knowingly assists or enable someone else in violating someone's copyright, that person may be held liable for contributory copyright infringement.
But contributory liability in this sense applies only to US copyright law. The concept is not available in the situation where a take-down notice requires the removal of content by an online content host.
Takedown Notices
The takedown notice itself requires careful examination. Both the FVPCA and the Regulations set out what is required of a take-down notice.
Section 119D sets out the mandatory contents of a take-down notice. It must:
(a) contain a description of the relevant online publication; and
(b) identify the URL or other unique identifier of the online publication; and
(c) require the online content host to remove, or prevent access by the public to, the online publication as soon as is reasonably practicable after receipt of the notice and no later than the time and date specified in the notice (the required period); and
(d) inform the online content host of the right of review under section 119J; and
(e) contain other information required by regulations made under section 149(1)(ab) (if any).
The 2022 Regulations also state that a take-down notice must contain a reference to the definition of objectionable in section 3 of the FVPCA and a statement that enforcement proceedings may be taken under section 119H of the Act if the notice is not complied with within the required period.
It is a requirement, of course, that the take-down notice must refer to content that has been classified as objectionable, or has been subject to an interim classification assessment or where an Inspector believes on reasonable grounds that the online publication is objectionable.
The notice dated August 18 2023 refers to details of the material which are set out in schedule A of the notice. A copy of the Notice and its Appendix have been obtained by way of an Official Information Act request. A URL is referred to but has been redacted.
However, from the information appearing on the Gab website the content is a post by a Gab subscriber which reads
“The Three Faced Terrorist | An Investigation Into The Christchurch Shootings | Part Two
Here lies The Three Faced Terrorist Part Two, the truly incendiary, heavily censored investigation into the Christchurch mosque shootings on 15 March 2019, which the NWO really don’t want you to see.”
A link follows to another site - the Bernician - where a video of the content was available but has since been taken down. The title screen of the video is embedded in the post and features an image of the Christchurch terrorist Brenton Tarrant. The content of the video contains the objectionable material and given the subject matter of the post, it is not hard to imagine what that material might be.
A search of the NZ Register of Classification Decisions reveals that “The Three Faced Terrorist | An Investigation Into The Christchurch Shootings | Part Two” was classified as objectionable on 26 July 2022. The Register does not identify an online content host but rather the publication itself which is described as a video file.
It is quite clear on the information available that the video content that contains the objectionable material was not hosted on the Gab site. The post allowed a user to reach the video content by following the link.
The problem is that although Gab is required to remove, or prevent access by the public to, the online publication as soon as is reasonably practicable after receipt of the notice it cannot do so because it is not the online content host for the video material. That resides elsewhere and is beyond Gab’s control.
The link that is provided is not objectionable and has not been deemed so, although the content of the video to which the link leads is objectionable. However, the issue of distribution as I have discussed in the context of the case of George v R does not arise.
The link, it can be argued, is content neutral.
The Canadian defamation case of Crookes v Newton [2011] 3 SCR 269 examined the nature of hypertext links.
The Court noted that hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content.
They both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral.
Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.
A hyperlink, by itself, should never be seen as “publication” of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.
Thus the Court is saying that hyperlinks are essentially content neutral references to material that hyperlinkers
a) have not created and
b) do not control.
Although a hyperlink communicates that information exists and may facilitate the transfer of information, it does not, by itself, communicate information. But the Court went on to consider a significantly wider issue – that of the internet itself.
“The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity. (Crookes v Newton para [36])
Therefore it is doubtful that given that the take-down notice referred to the link contained in the Gab post, that link could not be, in and of itself, an objectionable publication. That being the case, the take-down notice would be of doubtful validity from the very start, simply because in identifying the link there would be no objectionable content to which the notice refers.
It may well be that the Department of Internal Affairs has incorrectly assumed that Gab in fact hosts the video of “The Three Faced Terrorist | An Investigation Into The Christchurch Shootings | Part Two” but that would seem to be an incorrect assumption.
The Current Position
For the period 31 March 2023 - 30 August 2023 the DIA has issued 20 formal Take Down Notices to Online Content Hosts. None of those were issued to New Zealand based Online Content Hosts. The takedown notices contained a total of 28 URL links.
11 URLs were taken down because of a formal Take Down Notice. 14 URLs were sent a further non-compliance warning. These warnings ultimately resulted in removal of the content of one further URL.
Gab did not comply with the Take Down Notice of 18 August 2023 and a non-compliance warning was issued on 25 August 2023.
The DIA in its response to my OIA request asserted
“Under New Zealand law – posting and promoting a hyperlink to objectionable material constitutes distribution of objectionable material and is an offence under the FVPCA 1993.”
That is correct under the decision in George v R. However, the takedown regime refers to publications and not to distribution as I have pointed out above.
The DIA further notes that it
“has not commenced enforcement proceedings for any of the TDNs. All TDNs were issued to online content hosts domiciled in countries where New Zealand’s judicial declarations and legal instruments are unenforceable.”
In the criminal sense that may be correct but the case of DIA v Mansfield discussed above would seem to hold otherwise.
Expanding Take-down Powers
The example discussed demonstrates the care that must be taken in attempting to exercise take-down powers. All the pre-conditions must exist before a take-down notice may issue.
A take-down notice is a serious interference with the rights of free expression. That said there is no doubt that such a notice may be justified where there is objectionable content available. However, the jurisdictional issues discussed demonstrate the fact that such a notice may be of limited effectiveness and its enforceability may be something of a paper tiger.
Furthermore, because take-down notices can only refer to objectionable content and may not be applicable, under the law as it stands at the moment, to hypertext links once again they may be of limited effectiveness.
Despite these difficulties in the FVPCA the Department of Internal Affairs proposes that its take-down powers be extended. In the Safer Online Services and Media Platforms Discussion Paper the Department states:
Recent law changes created a takedown power enabling the Department of Internal Affairs as the sole agency to issue takedown notices. This power requires online content hosts to remove, or prevent the New Zealand public having access to, publications that meet that threshold for objectionable content.
This power to require takedowns would transfer to the new regulator. The regulator would be able to issue takedown notices without a referral from any other agency. The regulator will not have the power to require takedown of individual pieces of material unless they meet the threshold for being illegal.(Discussion Paper pge 54 para 102)
In addition the Department states:
We also propose that the existing takedown powers be extended to material that has been found to be illegal under other New Zealand regimes. For example, under the current regime if someone was convicted of a threat to kill delivered publicly online, the online threat is unlikely to meet the threshold of being ‘objectionable’ and the current takedown power would be unavailable if a platform chose not to remove it. (Discussion Paper pge 55 para 106).
The Department seeks to expand liability for civil penalties beyond those set out in Part 7A FVPCA. It states:
Currently, online content hosts that fail to comply with takedown notices are subject to a civil penalty of up to $200,000 for each incident of non-compliance. Current penalties align with other comparable penalties under the Classification Act. We propose that platforms that fail to comply with takedown notices should also be subject to civil penalties in the first instance. We also propose that financial penalties are revised to reflect the seriousness of non-compliance. This will be determined after consultation on the proposals set out in this document. (Discussion Paper pge 56 para 109)
Finally there is a proposal to expand criminal penalties beyond New Zealand – a somewhat bold and step given the difficulties attendant upon asserting extra-territorial jurisdiction. The Department states:
Regulated Platforms (even those not based in New Zealand) that repeatedly do not respond to takedown requests for illegal material would also be subject to the criminal penalties applying to individuals and entities who publish and share such material. This reflects the current situation of platforms being liable for knowingly possessing or sharing illegal material. (Discussion Paper pge 47 para 79)
In a startlingly realistic comment the Department observes:
There will always be bad actors who deliberately host illegal material and have no intention of ever cooperating with a regulatory system. It may in practice be impossible to take effective action against all of them. This raises the question of what the right ‘last resort’ remedy might be for persistent and serious noncompliance by platforms that host the most harmful content.
We have considered a few options that might encourage all Regulated Platforms to comply, and that provide a way to manage the very worst of risks. These include:
• imposing further and larger financial penalties
• issuing enforcement notices to comply, followed by prosecution for breaching New Zealand law
• asking a judge to impose access and service restrictions that stop the platform providing content to New Zealanders (sometimes called ‘service disruption’).
These court orders would apply for a set period or until the platform complied. (Discussion Paper pge 48 paras 80 – 82)
The ultimate step seeking judicial approval to impose access and service restrictions is essentially to obtain a Court order to block content. This proposal goes much further than any powers the DIA may presently have under the FVPCA and suggests an expanded censorship power to govern content that may not be objectionable under the very strict definition of that term in the FVPCA.
But as matters stand this is all wishful thinking. As the discussion of the Gab take-down notice demonstrates there are a number of obstacles that must be overcome before an effective take-down regime can be contemplated much less be effective. Matters such as jurisdiction, properly identifying objectionable or qualifying content, properly identifying an online content host and resolving the vexed question of whether a link to objectionable or qualifying content should be the subject of a take-down order needs to be resolved.
In addition the scope of the DIA proposals may not be as extensive as may be first thought. Messaging platforms such as Telegram, Signal or WhatsApp appear not be in scope, presumably on the basis that they are “private” messaging systems. We think the public versus private dichotomy may be harder to justify and apply in practice. For example, “private” Telegram groups can have up to 200,000 members.
It may well be that the major players in the online content space – the Googles, Facebooks, Instagrams and others – may comply with a take-down notice to demonstrate that they are responsible corporate citizens and to avoid any legal repercussions attendant upon their doing business in New Zealand. But as matters stand the DIA really needs to get its take-down house in order before it starts expanding its censorship powers.
Conclusion
There are a couple of concerns that I have regarding the notice which was made available via the Gab website.
Given that the Take-Down Notice was issued by the DIA and refers to a link rather than to identifiable objectionable content that is hosted on the Gab site, there must be some concerns about the process undertaken by the DIA.
It must be remembered that the DIA promotes itself as the lead Government agency for digital safety and online harm, working with other agencies to respond and support those affected by cybercrime.[1] Given the issues that have been identified in terms of the notice, its effectiveness, the availability of jurisdiction and the likelihood of meaningful enforcement, the ability of the DIA to fulfil these most elementary functions must give cause for concern.
A fundamental issue such as whether or not a link may be objectionable in this context is unanswered. This must give rise to a question about the diligence of the investigation involved in this case, or whether it was a response to a compliant that was unsubstantiated. It is unclear at this point whether or not the actual online content host - the Bernician - was approached to remove the content.
Given these elementary errors and shortcomings one must question whether or not the DIA is in any sort of position to administer extended take-down powers proposed in the Safer Online Services Discussion Paper.
[1] Digital Service Transformation: Building modern, integrated, and resilient digital public
Services – 15 August 2023 Para 59. : www.publicservice.govt.nz/assets/DirectoryFile/Digital-Service-Transformation-Building-modern-integrated-and-resilient-digital-public-services.pdf
Very tricky - but that won't stop them trying. After all, we must be protected from the pernicious misinformation that all these far right conspiracy groups peddle.